Also if the defendant is not required to provide the encryption key/password, but an unencrypted copy, what's to keep them from providing a "sanitized" copy - how do you check if it's the same bunch of files if you can't see the encrypted data?

Steganography [wikipedia.org]
Is "I forgot" or "I never knew the password in the first place" considered a valid defense?
One of the problems with compelling people to produce passwords is that it assumes they know the password.
Spending months in jail for failure to produce information you don't know would really suck.

If I let a cop into my house, I do not have to give him permission to look into my bedroom or allow him to look in my dresser. So, how is that different from letting someone into my computer, but locking them out of particular directories or files?

I always set my password to "confidential". Then when they ask me what my password is, I can truthfully reply, "It's 'confidential'!" And when they try to put me in jail, I can truthfully say, "I told you what my password was!" (True story: many years ago, the admins at Amdahl UTS sent out an email to all developers stating "We've changed the root password for the system and we can't tell you what the new password is because it's a secret". I of course immediately tried logging in as root using variants of "asecret" for a password, and sure enough -- it worked!)

Courts have ruled before that you can't take the 5th to refuse to unlock a safe that you own. The reasoning is that the information you're providing - the combination to a safe, or in this case a decryption password - could never be incriminating in and of itself. It's the same reasoning that they used when they decided that the 5th doesn't give you the right to refuse to disclose your name. Now, if he had wanted to claim that the encrypted files weren't his and he didn't know how they got on his laptop, then providing the password COULD potentially be incriminating, because it would be evidence that the files were indeed his. But now that he has admitted to owning the files, that scenario is no longer relevant.

That is why the ruling was close. You can look at it as him providing evidence against himself. Or you can look at it as him blocking execution of a search warrant (essentially).

The data was subpoenaed based on his initial cooperation. So the ruling is now that the police know something is there... he can't claim he is providing evidence against himself any more than he could refuse to turn over the contents of his suitcase if properly subpoenaed.The difference is the lock is easier to cut off the suitcase, with the encryption he needs to enter the password.

What is needed is a destructive decryption program that produces files with innocent.zip or.rar file extensions that "decompress" into benign images or other files while destroying the original data. Unless the file is renamed and then opened with the appropriate program, no data is available.

All defaults would appear "wholesome",

The Thought Police request access to your flash drive. You hand it to them without comment, they open the files which display innocent images you personally selected beforehand. There is no steganography, the data is lost.

I read the case. At the border, on request of the Immigration and Customs Enforcement people, the guy decrypted his (he admitted possession) laptop's Z drive and let the border agent have a look. The border agent saw probable cause to believe that the guy had illegal images stored on his computer.

Now the guy is claiming that he can't be made to provide (once again) an unencrypted copy of the Z drive because the act of producing the unencrypted Z drive would tend to incriminate him.

The "act of production" is the key thing. The Fifth Amendment affords zero privacy protection for hard drives (look to the Fourth Amendment for that). If the act of production would tend to incriminate you, then the Fifth Amendment may be asserted.

The government won with the "cat is already out of the bag" attack. A higher court had already accepted that defense in a similar (non-computer) case. The District Court followed the reasoning in that case.

This is a grand jury proceeding--not a criminal case. The government has submitted that it will not use the defendant's act of production against him when they prosecute him.

I expect that this case will be finally resolved in the Court of Appeals.

He hung himself when he decrypted the disk and showed the computer to the border agent.

You should never talk to the police, their only interest is incriminating you in a crime, not the other way around.

obligatory quote

There's no way to rule innocent men. The only power any government has is the power to crack down on criminals. Well, when there aren't enough criminals, one makes them. One declares so many things to be a crime that it becomes impossible to live without breaking laws.

When will someone create an encryption utility based on Chafing and Winnowing? This allows several files, each with its own key, and some random data, to be combined in a single file. On one can determine how many files are in there so, after you extract one or two files, you can deny that there are any other files in it. And no one can prove there are more files in it (since there is a unknown amount of random data also included in the package). Plausible deniability.

It's not that you have a misunderstanding of the 5th amendment, it's just you were misled by the article summary and don't have the legal knowledge to know that it's wrong. In fact, the 5th amendment is not an issue in this case. It's more of a 4th amendment issue. The argument that worked in the last court is that the 5th amendment applies because the password is testimonial. The reason the defense worked is because they're right that it is testimonial in nature and is protected under the 5th amendment. Where the lower court messed up was thinking the 5th amendment was an issue.

Watch out, here comes an analogy. If police were conducting a search warrant on a home and there was a physical safe that contained actual photos of child pornography AND the safe is within the scope of the warrant. They could ask for the safe combination from the owner, but that's protected under the 5th amendment. It's protected because it's testimonial in nature. If he knows the combination of the safe then he is demonstrating that he owns it and likely knows what's in it. But let's say the owner waives his rights and opens the safe and lets the cops search it and they see child porn in it. Then, a police officer bumps the safe and closes it and they don't know the combo. Well now they have probable cause that you are in control of the documents in the safe and the 5th amendment is not the relevant protection.

Am I splitting hairs if I say that it seems to me that all the gov't has is an ICE agent's word that he saw incriminating files? They can't produce those files, and they didn't copy any of said files when they had the chance. I don't see how the court can take the agent's claim as prima facie evidence. What's to stop any agent, going forward, from saying he saw _whatever_ on any person's laptop, and then that person has to produce potentially self-incriminating evidence - even if it's made up - or be held in contempt?

Second, you're at the border. You're not allowed to bring fruit, nuclear material, or child porn with you into the country. Seeing as you have not yet entered the country with any of these things, and you did not acquire them inside the country, your current possession of such things has not broken any laws in the country! At this point, you should now DELETE said child porn, or turn over all copies to border patrol, whatever. You are now clear to enter the country, WITHOUT illegal materials. Have a nice fucking day.

Seriously, would they arrest me for downloading child porn while I'm in, say, Vietnam? If I'm on a US military base, HELL YES. If I'm on vacation, and don't bring the material back into the country? Uh.

forcing him to produce what is on the laptop does not constitute compelling him to testify against himself.

The ruling is still troubling for the following reason: Suppose that the defendant had not cooperated with the agents in any way, only answering questions that are minimally necessary and required by law (i.e. his name). If the government agents then say that he has "document x" on "his laptop", but he says nothing and does not assist them in any way then could they later say that forcing him to produce "document x" which they claim is on the encrypted laptop (whether it is or not) abrogates the fifth amendment right to refuse to give up the key? If the answer to that is yes, then the 5th amendment is meaningless in these situations since the government agents could make whatever claims they like about your laptop and force the burden upon you to disprove them by giving up the keys and submitting to a search or else face the consequences.

Guard: Oh come on, be serious, if you aren't going to do this baggage check stuff properly don't do it at all. Now shove off!
Outcome: Guard doesn't believe such amazingly incriminating answer. Thinks you are obnoxious. Tells you to keep going.

Some people already tried something like that [google.com].
Tell me about lacking sense of humor!

A more apt comparison to the first amendment would be that by cooperating to shut-up at first, you've waived your right to speak up in the future.

This 5th amendment ruling seems wrong. Primarily because the so-called human rights defined in the BOR were not granted by the paper or the government; they are instead inalienable. They cannot be revoked because they are not granted. The BOR was the founder's attempt to remind future government that:

it is futile to attempt to restrict the speech of the people... they will find a way.

it is futile to attempt to infringe the RKBA, because those who want weapons will have them anyway.

it is futile to demand to quarter troops in the houses of the people... that leads to revolution

you better not breach a man's castle for unreasonable search and seizure... revolutions are begun this way

respect the property of the people or risk revolution. And respect their privacy because compelling someone to testify against themself dresses lies as truth.

If the only thing against him at this point is some border guard saying he saw child porn on the guy's laptop, the guy has not given up his fifth amendment rights. For one thing, one person's word against another's is rarely given much weight in court if that's all there is.

In short, the guard claiming he saw child porn on the guy's hard drive is much, much different than the court ordering the guy to provide evidence against himself.

This is different from, say, a police interrogation, where what you're saying and doing is recorded and usually witnessed by several people. In such a scenario, assuming you'd been Mirandized, then if you confess to something, it's game over, and you can't go to court and claim fifth amendment protection against information you voluntarily gave away in the presence of corroborating witnesses and recording equipment.

But in this situation, it seems like all the court has is some guard's say-so that there was child porn, at which point the laptop was seized, but now nobody can confirm whether or not the guard saw what he claims to have seen. As far as I can see, there's no legal reason to insist that the guy has to give up information based on that.

Let's put it another way. Suppose you get pulled over on a routine traffic stop. For no reason, the cop arrests you, and claims you told him you killed a guy. Now, do you think your fifth amendment rights have been forfeit because a single individual says you already admitted to the crime? Or do you think maybe there should be a little more to it than that?

But when they call the defendant to the stand, he *explicitly* gives up his 5th Amendment rights. And he doesn't give them up. He agrees to not follow them before taking the stand. They aren't throwing him in jail for failure to incriminate himself, but he swore to tell the whole truth, and is refusing to uphold that oath he gave, knowing it was overriding the 5th Amendment. The witnesses don't count because they are often not there voluntarily. They are compelled to testify, so they may decline any individual question. The defendant is not compelled to testify, but if he does must answer all questions. The reasoning behind that is sound, for someone to take the stand and give only small bits of the truth that help their case and excluding parts that wouldn't is a tactic that the courts don't allow.

Either way, this guy waived his 5th, with regard to this evidence, when he showed the police the incriminating evidence.

Did he show them incriminating evidence, or just make reference to it? And did they get the waiver in writing? The waiver in court is considered to be in writing because it is officially transcribed and witnessed by at least 3 parties. If they can't show he stated "I understand that by showing you this, I give up all rights" or whatever, then I can't see how he "gave them up." It sounds more like they were taken from him.

I had nothing to hide, let them search my vehicle. Didn't resist, was polite and as helpful as possible. When I asked why my licenses was suspended they said, they didn't know and that it was strange because their system usually gives a full reason. I was arrested and released on the spot due to procedure. One cop was "nice" enough to give me a ride to a local hotel as I was about 4 hours from home and had no vehicle.

I got back home and went to the DMV. There was a camera ticket taken of a car after I traded it in with a different person driving it. They said I could fight it and that I should get a lawyer. I would not have a license until after the full court battle went through. Instead I payed the $85 and went to an 8 hr class. Much less time and money.

When my court date came around I had a friend drive me to the town it happened in. I was looking to get my vehicle back and the stuff thrown out. The deal ended up I pay $80 fine for my license plate light being out. (the original reason I was pulled over) and $700 impound fee.

Again I could have fought it with a nice lengthy court battle, lawyer fees, impounded vehicle racking up charges, and there was still the chance that I would have won nothing. The law states "driving on a suspended license" and makes no exceptions for a mistakenly suspended license.

Sure I had almost $1000 for a screw up at the DMV, but I could have fought it, racked up 10x the cost in lawyer fees, had no car, have to get to a town 4 hours away, no way to get to work for 6+ months, and only a strong likelihood that I would have won.

In the end I'm sure that $1k was a boon to the small towns economy. I wouldn't doubt if the judge got a piece of it. The only time I had ever seen something so corrupt was when I had to get a friend out of a jail cell in Mexico. At least then I just payed the judge cash directly and he handed him over.

If we lived under laissez-faire capitalism, all those banks and investment firms that ran themselves into the ground would have been permitted to collapse fully, freeing capital for the use of new entrepreneurs, some of whom would use it more wisely, some of whom would fail and pass it on yet again. Instead, we take from the taxpayer to prop up failed firms and maintain failed leaders. It is socialism that has failed us.

You do not have to cooperate (not co-operate) again, but a reasonable search or re-search will get a warrant. And this is not what the Judge is saying. Essentially, 1's and 0's on your hard drive is not knowledge in your head and is discoverable evidence.

But the "ones and zeroes" they want aren't on the hard drive - they're in your head - the passkey. They HAVE the ones and zeroes that are on the hard drive. If you refuse a warrant to provide the contents inside a physical safe, they can force it open; they can't force the encrypted drive. The smart thing to do would have been to try to convince him that it was in his best interest to hook them up with his suppliers, and go after the source. If *he* is the source (porn producer), then they should have no major problem proving it, now that they know who to look for.

They screwed up. After all, what's more important, throwing a perv in jail for refusing to decrypt a drive, or going after the person producing the kiddie porn and putting a stop to it? So much for "think of the children." Throwing this guy in jail does nothing. Getting him to flip on his contacts (after all, it doesn't just miraculously materialize out of the aether) might have been useful.

"I think they are required to read him his rights. The catch was he wasn't arrested initially so he wouldn't had known if he cooperated in any way he lose his 5th Amendment rights.
It's a catch-22 in his situation. If he refused to answer the boarder patrol's questions when they suspected he was carrying encrypted porn they would have put him in a holding cell for awhile. I think they can't hold him for more than 48hrs without filing charges against him."

IANAL...but from my understanding...at a border crossing, when entering the US, you have an exception to the consent to search rule, crossing the border is automatic consent to search. However, it sounds like if they search and find encrypted content, you can likely refuse under 5th amendment to give the key/password. What seems to have happened here...is they found encrypted content...and he did something more than clam up...not sure what yet was 'cooperative', but, apparently if he'd not done anything, he'd be covered under the 5th.

The bill of rights does not apply at border crossings. Think of the first few amendments to the constitution. NONE apply at a border crossing. And this is basically how it works in every country in the entire world (and then there are the countries where bribes must be paid). It's just a fact of international travel.

Something is badly broken when everyone is told not to talk to the police.

I think the priority should be to fix what's broken, rather than tell people not to talk to the police.

Sure it does reduce your risk a bit (and thus benefits you), but if everyone does that, the police become a lot less effective.

It's like the mass vaccination programs, if nearly everyone takes the vaccine, and only a few refuse, the few benefit (since vaccines do have side effects, and there's always a small risk of bad reactions). But if everyone refuses, it becomes a huge problem.

So if the problem is the police are crap. That should be fixed ASAP.

* The basic mission for which the police exist is to prevent crime and disorder.* The ability of the police to perform their duties is dependent upon the public approval of police actions.* Police must secure the willing co-operation of the public in voluntary observation of the law to be able to secure and maintain the respect of the public.* The degree of co-operation of the public that can be secured diminishes proportionately to the necessity of the use of physical force.* Police seek and preserve public favour not by catering to public opinion, but by constantly demonstrating absolute impartial service to the law.* Police use physical force to the extent necessary to secure observance of the law or to restore order only when the exercise of persuasion, advice, and warning is found to be insufficient.* Police, at all times, should maintain a relationship with the public that gives reality to the historic tradition that the police are the public and the public are the police; the police being only members of the public who are paid to give full-time attention to duties which are incumbent upon every citizen in the interests of community welfare and existence.* Police should always direct their action strictly towards their functions, and never appear to usurp the powers of the judiciary.* The test of police efficiency is the absence of crime and disorder, not the visible evidence of police action in dealing with it.

The basic mission for which the police exist is to prevent crime and disorder.

Yes, and this is where I feel they have lost their way. Not so long ago, the police had to "actively" prevent the crime from occurring, or at least be on the scene to capture the perpetrators immediately afterwards with enough evidence to make sure they were put away for a long time.

But what with the mess that is the judicial system (pick any country you like, they all have lawyers) where any criminal can walk on a technicality... and the police's semming inability to solve REAL crime anymore, they have gradually moved across to what I call "passive" prevention

i.e. enforcing trivial little rules like public disorder, congregation in public places, speeding, running red lights, by placing security cameras at every turn... and browsing through people's laptops at airports looking for files called "kiddy_porn.zip".

Policing is now more than ever a "numbers game"... while the real criminals literally get away with murder.

"If you don't cooperate at least a little, you're not getting across, which presents some problems for those of us who want to, you know, ever leave the US and be able to come back, which if you listen to people on this site we "ignorant Americans" don't do nearly enough."

Not traveling outside the US borders does not make one and "ignorant American". There are plenty of reasons one may not wish to travel to other countries.

I've traveled about outside a bit, earlier in my life, but, as of now, I really have no inclination to travel outside the US. Economics plays a small part right now, as does violence (in MX murder and kidnapping is on the rise)....but, mostly, right now, with the US being as large and diverse as it is, there are so many places I want to go visit. We have cities and places that will give all sorts of experiences. We have mountains to climb or ski on. If you like a tropical climate, hit the FL coast, hit the keys. You like something with some European style architecture? Come party in New Orleans. We have the Grand Canyon...Mount Rushmore....all kinds of monuments. And food? Heck....you can take some interesting culinary travels within the US.

So, for right now...I have no real compelling reason to travel outside the US borders.

I have no plans in the future at all, at this point, to apply for a passport, I don't need one.

Yeah because living the UK where everything you do is watched by camera or internet surveillance, or Australia where your net is filtered to protect you from (oh no) naked bodies, or in Japan where the government *forces* you to lose weight (mandatory diets) to reduce government health costs, or..... Seriously - the U.S. for all its faults is still the most free spot on earth. Also the lowest tax rate (~35%). Unless you buy yourself a private island, and most of us are too poor to do that, so the U.S. is the second-best option.

I cannot think of any place I'd rather be than where I'm at right now... except maybe Tennessee (no income tax). Or New Hampshire. [freestateproject.org]

The basic mission for which the police exist is to prevent crime and disorder.

This is not true. The idea that the police can prevent crime is what is causing many of these problems. The basic role of the police is to prevent vigilante justice after crimes have been committed, which is what would take place without police. If you want to cede all of your rights and free will, then go ahead and allow the police the power to "prevent crime", but that is neither possible nor a good thing for a free society.

Actually this was a border search. The agents already had every search power that a warrant can convey. You can't waive rights that you don't have and at the borders you have no fourth amendment rights. Even if you had fourth amendment rights, the context was coercive. If there was any consent if was that of following the commands of a border agent executing his search powers, not a consent to a voluntary search.

The scope of discovery should be confined only to what the agents actually saw at the time of the search and nothing else.